Should Ireland and the European Union now agree to drop the Border backstop – or at least accept a time limit on its operation?
The case for doing so is that the backstop which was intended to ensure no hard Border in Ireland is now the main obstacle to approval by the House of Commons of the withdrawal agreement between the UK and the EU. If we persist with it the outcome could be a no-deal Brexit which would make a hard Border inevitable and threaten Ireland’s other vital interest – a future UK-EU relationship which allows us to maintain the closest relationship possible with the UK.
The argument is worth considering but I suggest two good reasons why it should not be accepted. One is that, although the vote for the Brady amendment last January indicated that the Commons would accept the deal without the backstop, UK divisions over Brexit have become so emotional that there is no certainty that even then the agreement would win approval. A second, more cogent, reason is that, in any case, the deeper underlying issue will not go away: it will recur immediately after Brexit when negotiations begin on a future EU-UK relationship.
The withdrawal agreement incorporating the protocol we call the backstop is long and complex. Among its other main provisions are a 21-month post-Brexit transition period; a financial settlement under which the UK will pay £37 billion as its share of the cost of EU decisions it joined in taking; and arrangements to preserve the rights of EU citizens in the UK and UK citizens in the EU.
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Transition period
Some ardent Brexiteers still question why the UK should pay £37 billion as part of the “divorce settlement”. More controversial, for them, if left unchanged, could be the 21-month transition period after Brexit during which the UK will be treated as if it were still a member state but will no longer have a seat at the table in Brussels. It will be within the customs union and the single market with its “four freedoms”; still subject to the jurisdiction of the European Court of Justice; and the common fisheries policy will still apply.
These were all sticking points for Brexiteers in the past. And most difficult for them to accept: as a participant in the customs union for nearly two years after it leaves, the UK will not be free to negotiate those great new trade deals with the rest of the world which are a main selling point for Brexit.
The backstop will take effect only when the transition period ends. Could we at least agree to a time limit beyond that – say five years? But Boris Johnson, the incoming UK prime minister, has flatly ruled that out, saying the backstop must go; and, besides, if Brexiteers and the DUP, wrongly, see it as a threat to the union they will hardly be appeased by a promise to limit the threat to five years.
For most of the 20th century the future of Northern Ireland was a zero-sum game
Of course, I could be wrong. If the backstop goes, Brexiteers might then swallow those other provisions and endure the two-year purgatory of transition to gain the promised heaven that lies beyond. But when I recall that Johnson described implementing EU decisions with no UK voice in how they are made as “vassalage” and “incarceration”, I would not be inclined to bet on it.
A second, stronger reason for holding to our position is that even if the withdrawal agreement minus the backstop is approved, the issue of how to minimise the damage to the Belfast Agreement after the end of the transition period will not go away. It will recur once negotiations on future UK-EU relations begin because Theresa May’s red lines, if they stand, rule out a close Norway-type relationship and point towards a more limited and distant Canada-style free-trade agreement. And if there is a no-deal Brexit the issue will arise with even greater immediacy if an effort is made afterwards to pick up the pieces.
For most of the 20th century the future of Northern Ireland was a zero-sum game. Either, as unionists insisted, it was part of the UK and would remain so; or, as nationalists, for whom it had been a ‘cold house’, demanded, it would one day be part of a united Ireland.
Open-ended approach
The Belfast Agreement is based on a new, more open-ended, approach, which seeks to get away from the idea that one side must win and the other lose. Instead, it leaves the future open-ended. All participants accept Northern Ireland’s present constitutional status and agree on the conditions for any future change – provisions now endorsed in referendums, in UK law and, as never before, in Ireland’s Constitution.
On this solid foundation its other provisions, like the EU at European level, are designed to ease historic conflict and build peace over time by developing common interests through institutions which engage in practical, functional co-operation.
The open Border of today between Northern Ireland and the Republic is an important part of that effort to get away from a zero-sum approach and not just a “concession” to Northern nationalists, nor something which future technology can easily bring about. It became possible in economic matters only with the establishment of the EU single market in 1993, and in security matters because of the 1998 agreement.
The easier human contacts and neighbourly relations which it encourages show that the open-ended approach of the Belfast Agreement approach can work, even if, sadly, powersharing in the North has faltered and there are still “peace walls” in Belfast.
No previous settlement of the centuries-long issues in this island, and between our islands, has ever had such a constitutional base or such wide support. Surely, Brexit or no Brexit, neither the UK or Ireland will allow it suffer unintended collateral damage or give up on the hope it offers us both.
Noel Dorr is a former Irish ambassador to the UK and secretary-general at the Department of Foreign Affairs